| N.Y. App. Div. | Dec 21, 1959
Appeal from só much of a judgment entered after trial directing specific performance of a contract for the purchase and sale of real property, including a house and its contents, as conditions that relief upon the payment by appellant of $15,000, less $2,100 paid on account of the purchase price of $21,000. Prior to the law day the house and its contents were completely destroyed by fire. Judgment modified Upon the law and the facts so as to reduce the amount payable by appellant from $15,000, leSs $2,100, to $7,500, less $2,100. As so modified, judgment insofar as appealed from affirmed, without costs. Findings of fact insofar as they may he incómsistent herewith are reversed, and new findings are made as indicated herein. Appellant is entitled to an abatement of the pmchase price in an amount equal to the actual value of the destroyed house and its contents (Smith Corp. v. Kraushaar, 249 App. Div. 789; Worrall v. Munn, 53 R. Y. 185). In OUT opinión, consideration of all the factors “ tending to throw light Upon the subject ” of the actual value Of the destroyed property (cf. MeAnarney v. Neiiark Fire Ins. (Jo., 247 1ST. Y. 176, 184; Sebrirng v. Fireman’s Ins. Co. of Newark, N. J., 227 A.D. 103" date_filed="1929-11-07" court="N.Y. App. Div." case_name="Sebring v. Firemen's Insurance Co. of Newark">227 App. Div. 103; Andrews v. Empire Co-Op. Fire Ins. Co., 103 R. Y. S. 2d 177; Polisiuk v. Mayers, 205 A.D. 573" date_filed="1923-05-18" court="N.Y. App. Div." case_name="Polisiuk v. Mayers">205 App. Div. 573), as well as the equities between the parties (cf. Polisiuk v. Mayers, sUpia, p. 579), warrants a finding that the actual valué of the destroyed property on the contract date was $13,500. Accordingly, appellant is entitled to an abatement of the purchase price in that amount. Wenzel, Beldoek and Kleinfeld, JJ., concur; Holán, P. J., dissents and votes to affirm without modification; Murphy, J., deceased.